Research: Background Check System Failing

Saturday

Aug 16, 2014 at 11:44 PM

While the National Instant Criminal Background Check System remains the only square inch of compromise between the nation's divided gun camps, the costly federal program is failing to keep guns away from the dangerously mentally ill.

By SARAH FERRISNEWS21

While the National Instant Criminal Background Check System remains the only square inch of compromise between the nation's divided gun camps, the costly federal program is failing to keep guns away from the dangerously mentally ill.

The White House describes the background check system, also known as NICS, as its "most important tool" to stopping gun crime. But more than a decade of data from the FBI and public health research reveals broad failings of the system, which has cost at least $650 million to maintain, a News21 investigation found.

Thirty states have passed laws mandating mental health reporting to NICS, four of which were added in the past six months. Yet no organization has been able to address the larger concern that NICS is poorly designed to identify those in society most likely to be violent.

"It's really casting a very wide net to try to find a few people, which is largely an impossible task," said Dr. Michael Norko, head of forensics at the Connecticut Department of Mental Health and Addiction Services. "It's not really a good public health measure. We really need to find a better way of doing this."

Federally licensed gun dealers are required to conduct a background check, either online or by phone, before each firearms sale. Within about 30 seconds, the system searches for prior criminal convictions and in 38 states a history of severe mental illness as judged by a court.

But states are not required under federal law to submit mental health records to NICS. There are no consequences, financial or otherwise, if states choose not to send records, resulting in a national record-keeping system that is riddled with information gaps.

Millions of people who have been forced into hospitals for mental health issues are left out of the system. Only about 30 percent of the 4.4 million estimated mental health records in the U.S. over the past two decades can be found in NICS, according to research compiled in 2012 by the National Consortium for Justice Information and Statistics and the National Center for State Courts.

Those whose names are found in the system are unlikely to try to buy a gun. Out of all gun purchases blocked by the FBI over the past 16 years, fewer than 2 percent were because of mental-health status. That amounts to 14,613 blocked sales since 1998.

The files are costly to locate and store, according to interviews with officials from 10 different states. Mental health records can be kept in courthouses, private hospitals and state health facilities across each state. There were 2,083 agencies responsible for providing information for background checks across the country in 2010, including courts, state health departments and psychiatric hospitals, according to the most recent Bureau of Justice Statistics report.

The system is also vastly over-inclusive, six public health experts said in interviews.

The names of people who are kept in the database is based on a decades-old definition of "mentally defective," which relies on court decisions rather than doctors' orders. Under federal law, individuals with histories of violent psychotic episodes can legally buy guns as long as they never set foot in a courtroom.

Every one of the country's mass shooters since January 2009 could have slipped through NICS, according to a July 2014 study by the gun control organization Everytown for Gun Safety.

For example, David Cornell Bennett Jr. -- a 22-year-old who killed his ex-girlfriend and her three children in Parsons, Kansas, in 2013 -- was sent to a state psychiatric hospital one month before the shooting. He had posted a threatening message on Facebook that had been flagged to local police.

But because Kansas law requires someone to be involuntarily committed -- not just sent for short-term evaluation, like Bennett -- he would not have been barred from buying a gun. It's still unknown how he obtained his weapon.

In 12 out of the 110 incidents identified by Everytown, the shooters had demonstrated some evidence of a mental illness, but there was no evidence that any of them had been mentally adjudicated or involuntarily committed for treatment.

Research over the past decade shows that it's nearly impossible to predict which individuals will commit gun violence, let alone find them through NICS.

"The ability of mental health professionals to pick out who's going to be violent, it's not much better than a coin toss. It's a needle in a haystack," said Jeffrey Swanson, a medical sociologist from Duke University who studies the intersection of guns and mental illness. "To focus only on mental health is misguided."

A PATCHWORK OF REGULATION

In addition to the FBI's annual budget for NICS, the Department of Justice has also handed out $56 million in state grants over the past five years to improve mental- health reporting.

Despite years of investments, some states continue to struggle to submit records.

Massachusetts has received $2,323,737 and collected just one record,

Idaho has received $4,359,500 and collected 4,002 records,

North Dakota has received $297,267 and collected 18 records,

Oregon has received $4,542,109 and collected 30,059 records,

Wisconsin has received $3,481,372 and collected 16,616 records.

Thirty states have passed laws that require agencies to report mental health records, with the number of records tripling since 2011. But states continue to report difficulties with interagency coordination, technological abilities and privacy laws.

After Nevada passed a law requiring state offices to submit records, it took more than a year for the courts to comply, Nevada state court administrator Julie Butler said. There's still no way to know whether the courts are submitting all their records, she said.

"The onus is really on the courts. We don't know what we don't know. There is no audit mechanism. We're totally reliant on them to report," Butler said. "There's no penalty or mechanism in our law to withhold money."

COMPLIANCE IN FLORIDA

Florida, which has received $8.6 million since 2007, has retroactively collected more than 60,000 mental health records since it was blasted in a report from Mayors Against Illegal Guns that showed the state had far fewer records than less-populated states like Pennsylvania.

As the Florida Department of Law Enforcement began educating clerks from the state's 67 counties and offering funds to help address the backlog, most ultimately complied.

"Nobody wants to say, 'Oh, this happened in my (county) and it may have been prevented if I had just done the reporting,'" said Tim Giesecke, who manages the database for the department.

Still, Florida's record-keeping is imperfect. A 2014 internal audit of the data found that half of its records were submitted after the 30-day deadline and 4,000 records took more than a year. Additionally, nearly 200 records had incorrect birthdates, making it tough for the system to identify disqualified people.

As the state works to improve its compliance, Giesecke said there are limits to his department's ability to enforce the law.

"We're in law enforcement, we are not mental health professionals." he said. "Our job by law is really to house that information and make it available."

Ten states have submitted fewer than 100 records to NICS, including Rhode Island and Montana. Some states with few NICS records have shared a portion of records with local law enforcement departments, though in Massachusetts that amounts to just 1,200 patients a year.

Federal government officials - along with lobbyists from Everytown for Gun Safety and the gun industry association National Shooting Sports Foundation - continue to push for more records. In 2015, the government will hand out $58 million in NICS mental health grants, its largest-ever pool of funding.

MIXED SUCCESS

Connecticut used $5 million in grants to create a fully automated mental health reporting system within two years.

Before the overhaul, Connecticut courts faxed hard copies of each involuntary commitment file to the state Department of Public Safety, and then sent it separately to the federal government. Now, the system is updated automatically and 14 years of files can be accessed in real time by state police.

Three years after Connecticut began sending mental health records to NICS, however, there is little evidence that the policies are helping to reduce violence in the state, according to a 2013 study by public health researchers from Yale University, Duke University and the University of Connecticut.

Out of 23,292 individuals diagnosed with severe mental illnesses or committed to a mental institution, federal law would have disqualified only 7 percent from purchasing a gun, the study found. The majority of those studied never committed a crime, and most of those who did already had criminal records.

The final report concludes that the laws had a minimal impact on reducing gun violence.

"Background checks to enforce the federal mental health prohibitions - even if they are completely effective - will have a very small impact on overall crime in persons with serious mental illness," according to the report. "Most of those at risk are unaffected by the law."

SYSTEM BREAKDOWNS

Norko, the Connecticut forensics official who also worked 15 years in the state's maximum-security psychiatric hospital, said he thinks the best approach to preventing firearms-related deaths is giving police the authority to temporarily confiscate weapons in dangerous situations.

Norko is now leading a study on guns that have been seized by police in Connecticut, one of just two states that allow the practice. Most of the 800 cases he's studied involve "regular folks" whose relatives or friends call the police because the person is "sitting there with a gun in their lap and an empty bottle of Jack Daniels," Norko said.

In most states, though, the boundaries of a police officer's authority aren't clear. An officer would need to make an exceptionally strong case that a person poses a threat to public safety before removing a gun from his or her home, nearly always requiring permission from a court, said Jim Specht, the communications director for the National Law Enforcement Partnership to Prevent Gun Violence.

Some states have attempted to better identify dangerous individuals before they harm others. California and New York have recently passed controversial legislation that requires doctors and other healthcare professionals to report people who present credible threats to themselves or police.

One of the biggest flaws of the background-check system is that the federal government cannot force states to submit records, according to the Supreme Court's 1997 ruling in Printz v. U.S.

The Department of Justice has some bargaining power: Ofcials have threatened to take away federal grants from states that don't participate in NICS.

Thirty-four states cut mental health spending between 2009 and 2011 - a total of $1.6 billion - at a time when the demand for mental health services has surged across the country, according to the National Alliance on Mental Illness.

Studies have found a slight correlation between mental illness and violence, though psychiatrists like Linda Stalters maintain that the two issues belong in separate policy realms. The vast majority of people with mental illnesses have never committed a violent crime.

Stalters, the president of Schizophrenia and Related Disorders Alliance of America who has spent years working in emergency rooms, said the core issue is about the lack of treatment, not access to guns.

PROTECTING PRIVACY, PERSONAL FREEDOMS

In the wake of the Virginia Tech shooting in 2007, top White House leaders launched an investigation into mental health and violence-prevention programs across the country.

The final report laid out several warnings about the lack of mental health services nationwide and the failure of states to consistently submit information to NICS. But it also had a straight-forward message for preventing tragedies like the one at Virginia Tech.

"We cannot maintain a free and open society and eliminate the possibility that violence in schools, offices or malls will happen again," the report stated. It was signed by the U.S. attorney general and the secretaries of education and health and human services.

Concerns about privacy and personal freedoms - predominantly, the Second Amendment - have emerged in nearly every state that refuses to require NICS reporting.

Still, groups like Everytown and the NSSF are optimistic that the remaining states will resolve these issues within the next few years and begin submitting all their records. Once the system begins functioning fully, said McGuidan, the NSSF lobbyist, the existing categories will be enough to stop gun crimes.